Kennedy, J., on Camera(s)

Tony Mauro at Legal Times has this article on Justice Kennedy's Senate testimony Wednesday. It has a few more tidbits about his exchange with Senator Specter regarding cameras. "'Please, senator,' Kennedy continued, pointedly urging the Senate not to introduce the 'insidious temptation' for justices to shape their comments and questions from the bench into catchy sound bites."

My own reason for skepticism about televising SCOTUS arguments (as much as I would like to watch them from Sacramento) is the temptation for the lawyers to descend into "catchy sound bites." Many advocates there are getting their one and probably only shot at a high court argument, and to actually get on the nightly network news as well would be such an ego trip that some might think more about maximizing that possibility than about effectively representing the client's cause. Watching the behavior of reporters at televised presidential news conferences, where some seem to be actively trying to be as confrontational as possible, is sufficient warning of the danger. Justice Kennedy, however, seems to be more concerned with the temptation to his colleagues.

Senator Specter made a strange point that televising arguments might help the public understand decisions such as his all-time unfavorite, United States v. Morrison, striking down in part the Violence Against Women Act. "In his reply, Kennedy, with remarkable frankness, pushed back against Specter’s point, telling him that linking the Morrison case with the need for cameras was 'a non sequitur . . . It doesn't follow.'"

Now this is interesting. Did Justice Kennedy really feel a need to explain to Senator Specter what a "non sequitur" is? Very doubtful. I'm pretty sure he's pretty sure that the Senator understands that term. Why the need to explain? Because he's on television, being watched by millions of people who don't understand the term. That's a subtle and clever way to make the point that televising affects the dynamics of the exchange. Maybe too subtle.

Might a Justice, in the middle of asking a question, digress to give the home audience a ten-minute explanation of what "stare decisis" means? Heaven forbid. Some of their rambling questions chew up enough argument time as it is.

In the end, Senator Specter seemed to relent and imply that anything they passed would be in the nature of a nonbinding resolution. There seems to be a lot of that going around.